This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (1996).

STATE OF MINNESOTA

IN COURT OF APPEALS

C7-96-1385

Connie Harbold,

Appellant,

vs.

National Casualty Company,

Respondent.

Filed February 4, 1997

Affirmed

Crippen, Judge

Dakota County District Court

File No. C79510232

Robert J. Healy, Metropolitan Law Office, 649 Grand Avenue, St. Paul, MN 55105 (for Appellant)

Richard M. Schultz, Joseph B. Marshall, Marshall and Associates, P.A., 9501 Lexington Avenue North, Circle Pines, MN 55014 (for Respondent)

Considered and decided by Kalitowski, Presiding Judge, Crippen, Judge, and Harten, Judge.

U N P U B L I S H E D O P I N I O N

CRIPPEN, Judge

Appellant Connie Harbold disputes the trial court's summary judgment that dismissed her no-fault personal injury claim because her injuries occurred after she had alighted from an insured vehicle. She fell immediately after stepping from the vehicle and beginning her movement toward her destination. We affirm.

FACTS

Appellant, a thirty-seven year-old woman, must walk with a cane because she has partial paralysis in her left arm and leg. In December 1994, she rode to her apartment building in a van owned and operated by Mode, Inc., a special transportation provider for elderly and disabled persons. Respondent National Casualty Company insures Mode's vehicles.

Appellant stepped out of the van onto an icy pathway through the front lawn that led to her apartment entrance. To stabilize herself, appellant held onto the outside of the van's door. With both feet on the ground, she closed the door, let go of the van, and turned toward her apartment building. Because appellant has only one good hand, which she used to hold onto the door, she was not in position to use her cane. She immediately took a step toward her home, slipped on the ice, and fell forward, injuring herself.

Appellant brought suit against Mode, the apartment building, and respondent insurer. After she settled claims against Mode and the apartment building, the parties brought cross-motions for summary judgment. The trial court granted summary judgment for respondent, finding that the no-fault statute did not cover appellant's injuries because she already had alighted from the vehicle when she slipped.

D E C I S I O N

A summary judgment is appropriate when the evidence shows that no genuine issue of material fact exists and that either party is entitled to a judgment as a matter of law. Fabio v. Bellomo, 504 N.W.2d 758, 761 (Minn. 1993). On appeal, the reviewing court must view the evidence in the light most favorable to the party against whom judgment was granted. Id.

Under the Minnesota No-Fault Insurance statute, a person is entitled to basic economic loss benefits if they suffer a loss from an injury "arising out of maintenance or use of a motor vehicle." Minn. Stat. § 65B.46, subd. 1 (1996). Maintenance or use of a motor vehicle includes "occupying, entering into, and alighting from" the vehicle. Minn. Stat. § 65B.43, subd. 3 (1996).

Whether a person is "alighting from" a vehicle is a "question of degree to be determined based on all the evidence." State Farm Mut. Auto. Ins. Co. v. Levinson, 438 N.W.2d 110, 114 (Minn. App. 1989) (upholding the trial court's finding that a 3-year-old girl, struck by a passing vehicle, was alighting from a truck where the door was still ajar and she was found only a few feet from the truck). Mere physical contact with the vehicle is not dispositive. Id. at 113. Rather, a person completes "alighting from" a vehicle when the person intends to undertake a new direction or activity and overtly acts based on that intention. Christensen v. General Accident Ins., 482 N.W.2d 510, 512 (Minn. App. 1992), review denied (Minn. May 15, 1992); Levinson, 438 N.W.2d at 114.

Christensen's facts are very similar to this case. After exiting from the rear driver's side door and walking around the front of a car, the injured party fell on an icy street while bracing herself on the vehicle. Christensen, 482 N.W.2d at 511. Although the court observed that sometimes a misstep on icy terrain may fall within the activity of motoring, it denied coverage, concluding that the person had completed "alighting from" the vehicle before the injury occurred because she intended to move toward the house. Id. at 512-13. The court stated that the presence of the car was fortuitous because a "fence, wall, or other stationary object would have served as efficiently." Id. at 513.

The primary consideration in this case is appellant's intent. Christensen, 482 N.W.2d at 512; Levinson, 438 N.W.2d at 114. Appellant fell after she had exited the van, closed the door, and turned away from the vehicle. Cf. Levinson, 438 N.W.2d at 114 (finding coverage where truck's door was still ajar). Appellant intended to proceed toward her home and began to take at least one step toward the apartment building before she fell. Christensen, 482 N.W.2d at 512-13 (finding presence of car fortuitous where injured party moved toward house with the intent to enter it). Appellant may have slipped within seconds of closing the door, but she already had made an overt act toward entering her home. She had alighted from the van before she fell.

Appellant urges us to adopt the Christensen dissent, but we decline to depart from the precedent established in that case.

Appellant finally argues that her partial paralysis and the driver's failure to assist her should extend the "alighting" period because, without the driver's assistance, appellant could only use one arm and one leg to exit the vehicle and to balance herself on the ice before proceeding toward her apartment building. But neither appellant's disabilities nor the driver's failure to assist her altered her intent to proceed down the pathway to her home.

Viewing the evidence in the light most favorable to appellant, the trial court properly found that appellant had alighted from the vehicle before she fell, thereby precluding recovery under the no-fault insurance statute.

Affirmed.